Katherine Mader spent two decades as a judge in Los Angeles Criminal Court, before retiring early in 2020. Before that she was the LAPD’s first Inspector General, prosecuted two murder-for-hire trials and served as a defense attorney who convinced a jury to spare the life of the Hillside Strangler. In August of this year, Judge Mader published Inside the Robe: A Judge’s Candid Tale of Criminal Justice in America, which best selling author Michael Connelly called: “a perfect book: engrossing and telling at the same time.” The Judge has granted Crime Story permission to excerpt the entirety of her book over the coming months. You can find previous installments of Inside the Robe here. This is Part 36.
Yesterday’s Daily Journal, the legal newspaper, contained an op-ed by Erwin Chemerinsky, the dean of the University of California at Irvine Law School. He wrote, “It is nonsense to think that U.S. Supreme Court justices can decide Constitutional cases without making value choices.” He explained that the idea that Supreme Court justices should just apply the law and decide cases without justices’ views or life experiences affecting their decision is completely unrealistic. One day in front of me was a defendant on probation for receiving stolen property. I’ve warned him that if he violates his probation, I will consider sending him to prison. The defendant violated his probation because he didn’t report to his probation officer for two consecutive months. Should I send him to prison, or should I warn him to report, give him a few days in jail, and release him back on probation? What if he was caught smoking marijuana on the boardwalk in Venice, California? Should I sentence him to prison for violating his condition of probation that he obey all laws? What if he was found with one rock of cocaine in his pocket? Prison? Or what if he had one rock of cocaine in his pocket and also two rocks packaged for sale in plastic baggies? Did he just buy the rocks for personal use, or was he going to sell them? What if he was convicted of driving under the influence of?
Each of these examples could result in a prison sentence depending upon the philosophy and life experiences of the judge. Of all of the scenarios, I would be most inclined to sentence the defendant to prison for the driving under the influence conviction, especially if there was an accident or if his blood alcohol level was exceedingly high. If the defendant came into court though, expressed remorse, acknowledged his alcohol problem, and showed that he has been going to AA classes, I might not send him to prison. Putting others at risk by driving under the influence, for me, is more serious than the other drug offenses. The underlying felony before me, receiving stolen property, suggests the defendant may have a drug problem. Perhaps the defendant should go to a rehab program instead of prison? A judge’s attitude toward rehab, previous experiences with rehab with other defendants or even the judge’s own family, might influence the decision. Some judges lean toward rehab, some toward punishment. How can a judge just “follow the law”?
My domestic violence trial is morphing into the Jerry Springer show. This often happens in such trials. The female victim has her own misdemeanor charge pending for resisting arrest. When a police officer tried to cite her for a traffic violation a few months ago, she yelled at the officer, “I’m going to get your ass!” She then tried to grab her cell phone from the police officer holding it. The prosecution does not like having to explain to a jury why their star witness is facing criminal prosecution in a different case. Prosecutors often call witnesses who have their own criminal cases pending. It is not unusual for prosecutors to discover during the trial that their witness needs an attorney. When that happens, prosecutors are startled. I’m sure they are because they were handed the case to try a day before the trial starts. And I am annoyed because it means a trial delay when I appoint an attorney to represent the alleged victim.
Diametrically opposed opening statements were presented by each side. According to the defense attorney for the male defendant, “The victim was a vengeful, jealous woman who didn’t want the defendant to move out. I will bring in witnesses to testify that the victim called the defendant continuously after he moved out and harassed him.” The prosecution says the opposite. “The victim ordered the defendant to leave her house and he was so furious that he raped and assaulted her.” The prosecutor showed the jury a dozen photos of major bruising across the victim’s body. It’s hard to believe a woman would allow herself to be bruised so severely during a consensual sexual encounter.
This morning I was again reminded how much power I have as a judge and how much my intervention can make a difference in someone’s life. It seemed odd from the beginning that this defendant in my rape and sexual battery trial rejected the three-year offer and risked being exposed to twenty-one years in prison.
A second prior crime committed by the alleged victim has emerged. In addition to her pending case for resisting arrest, she had another arrest in Long Beach a year before this case, also for domestic battery. The case against her never went forward, and both sides in my trial want to know why. The attorneys told me, “We each contacted the Long Beach Police Department but were given the runaround. They said it would take seven to ten days to get the report, it could not be faxed and had to be personally picked up or mailed. We can’t get the report to use during the trial because of the delay.”
Unlike popular belief, judges don’t lightly throw around our power to order someone to do something. It sounds heavy-handed to utter the word order if it’s not necessary. I was already wondering about the victim’s credibility. I wanted to ensure that everyone had this Long Beach report. I told the investigating officer for the prosecution to call the Long Beach Police Department and tell them that the judge was ordering that a representative appear in our court at 8:30 a.m. today with the report—or they must fax the report ASAP to the court. Since Long Beach is a lengthy drive from downtown Los Angeles, I knew that they would not want to send someone in the morning. The phone call worked, and the report was turned over. It’s baffling to me why police officials in Long Beach played games with sending the report in the first place. What do they have to gain other than displaying their authority?
The report revealed a similar situation to the one before me between the supposed victim and a different boyfriend. One month after they began living together, she hit him, and bombarded him with calls and text messages. After he called the police, she was abusive to the arriving officers, similar to the way she behaved toward the officers who tried to give her a traffic citation. When the prosecutor in my case saw this report, he gave up. He offered to let the defendant plead to one count of misdemeanor domestic battery for which he would be immediately released from custody. No sex registration. The defendant eagerly took the offer, the jurors were excused, and the case was over.
Several lessons were learned. As a judge, I need to be pro-active when needed and make sure that each side has the reports it needs. I could have held back and told the attorneys that it was too bad that they hadn’t asked for this police report earlier. The defendant might have been convicted and sent to prison.
I hope the attorneys learned that they need to better prepare for jury trials with such high stakes. The prior domestic violence allegation against the victim was listed on her criminal history report and should have been investigated. The case was pending for a year, and the defendant spent all of the year in jail. No one in the hierarchy of the district attorney’s office audits why a case unraveled. There are too many cases, and everyone just proceeds to the next in line. The defendant’s lost year in jail is the cost of doing business for both the prosecution as well as the defense.